Amit Chaudhary vs State Of H.P

Anoop Chitkara, J

The petitioner, incarcerating upon his arrest for alluring and raping a minor girl, has come up before this Court seeking regular bail on the grounds of

false implication and further that the victim had earlier levelled similar allegations on two occasions, and in one such case, in her statement recorded on

oath during the trial, she resiled from allegations and in her cross-examination also stated that she was more than 18 years of age.

Earlier, the petitioner had filed the following bail petitions:

(a) Cr.MP(M) No.80 of 2021, in this Court, decided on 4th February, 2021.

The bail petition is silent about criminal history, however, Mr. Peeyush Verma, Advocate, Ld. Counsel for the bail petitioner states on instructions

that the petitioner has no criminal past relating to the offences prescribing sentence of seven years and more, or when on conviction, the sentence

imposed was more than three years. The status report also does not mention any criminal past of the accused

Briefly, the allegations against the petitioner are that:

a) On 28.12.2020, on noticing the missing of two minor girls ‘S’ aged 14 years and ‘Y’ aged 16 years, from Child Care Institute

Mashobra at Tutikandi, the Officer-in-charge (Superintendent) immediately informed the police of Police Station West (Boileauganj), Shimla.

b) The victims took lift in a car from the Child Care Institute, and the car driver dropped them at the old Bus Stand, Shimla. Then, they took a phone of

someone and called one Lovely, a friend of ‘Y’ and asked him to take them from Shimla. Lovely refused to do so, but he sent them Rs.500/-on

the Google pay account of the person, to which they called. The person who has Google pay account on the said mobile gave Rs.500/- to them.

c) After that, both the victims reached the old bus stand, Shimla, and inquired about the bus to Una from a Lady named Kamla. Since it was nighttime,

no bus was available to Una, and the victims spent the night of 28.12.2020 in the house of Kamla. On the morning of 29.12.2020, the victim paid

Rs.300/- to Kamla and left her home at around 9-10 a.m. Later, they took a bus to Bilaspur.

d) While the victims were traveling in the bus, Ankush started talking with ‘Y’ and later gave her his mobile number and asked her to meet him

in Bilaspur. After that, both the minor victims took another bus from Brahampukhar to Bilaspur, and while traveling in the said bus, another boy named

Amit (present bail petitioner) met them. They went to Laxmi Narayan Temple in Bilaspur. Later in the day, Amit arranged for a hotel room for the

girls and himself. All of them spent the night in the same room where Amit rapped ‘S’ aged 14 years.

e) On 30.12.2020, they checked out from the hotel, and ‘Y’ called Ankush from the mobile of Amit, and he comes to Bilaspur. After that, they

all went for a stroll on the bank of the river, where Ankush molest ‘Y.’ Later in the day, Amit left, and Ankush arranged for a room in the same

hotel for the night of 30.12.2020. After that, he left the hotel, telling the victims that he would get some food but did not return. ‘Y’ tried to call

him through someone’s phone, but he did not pick up.

f) On 31.12.2020, 'Y' again called him in the morning when Ankush said that he would not come back. Both the victims asked for Rs.500/-from Hotel

staff to pay for the room's rent. Then, both of them took a bus from Bilaspur to Chandigarh. On reaching Chandigarh' S' called one Vicky and asked

him to come to Chandigarh, to which he asked the victims to go to Ambala. On reaching Ambala, the victims informed Vicky, who came there to pick

them up with another boy, named Tonny. They pick them up on two different motorcycles. Vicky picked up 'S' and Tonny' Y.' They took them to the

room and rapped them.

g) On 1.1.2021, Vicky and Tonny left the girls in a bus stand for Chandigarh. On reaching Chandigarh ‘S’ called Vicky, but he did not pick up

the call. Then, both the girls left for Baddi to the friend Kanchan. They called Kanchan, but she did not pick up, and then the victim returned to

Chandigarh. ‘S’ called Vicky from Chandigarh and told him that they do not have any money. Then, Vicky sent ‘S’ Rs.500/- on the

Google Pay account of the person she is calling. After that, on the night of 1.1.2021, both the victims took a bus from Chandigarh to Dharampur and

then reached at about 1.30 a.m., at the native village of ‘Y’ at District Solan H.P.

h) On 2.1.2021, the I.O. took the victims for their medical examination at IGMC, Shimla, where the doctors conducted their medico-legal examination.

After medical examination, the doctors collected swabs from their privates and handed them over to the investigator, who sent the same to the

Laboratory for analysis. However, the report of the same is still awaited.

i) Based on these allegations, the Police registered the FIR mentioned above.

Mr. Peeyush Verma, learned Counsel for the petitioner contends that the petitioner is a first offender and incarceration before the proof of guilt

would cause grave injustice to the petitioner and family. He further submits that although the victims are prima facie minors, but their conduct in

visiting different places and not informing any co-passengers or anybody-else, makes out a case for bail.

On the contrary, Mr. Nand Lal Thakur learned Additional Advocate General contends that the offence is heinous, the accused is a risk to law-

abiding people, and bail is likely to send a wrong message to society. He further submits that as per the date of birth certificates, the victims were born

on 4.6.2004 and 9.5.2006. As such, they both are much below 18 years of age when they could have consented. The accused is a proven habitual

offender, and given his past conduct, he is likely to repeat the offence. He further insists that if this Court is inclined to grant bail, then such a bond

must be subject to very stringent conditions.

Petitioner has annexed the copy of FIR No.36 of 2019, dated 15-11-2019, registered in the file of Woman Police Station Nahan, District Sirmour,

HP, on the allegations made by the victim ‘S’ against Sahil Khan. The petitioner has also annexed a copy of the statement of PW-10, the

mother of victim ‘S,’ as well as the copy of the statement of the victim ‘S,’ who testified as PW-11, in the trial No. 2-ST/7 of 2020, in the

Court of Special Judge, Sirmour, at Nahan, going on against accused Sahil Khan. A perusal of these statements reveals that both mother and the

victim had turned hostile. The victim even mentioned her age to be over 18 years as of 15-11-2019, the date of the incident.

Apart from the above, the petitioner has also annexed a copy of FIR No. 54 of 2020, dated 6-7-2020, registered in the Police Station, Nahan,

District Sirmour, HP, on the allegations made by the mother of the victim ‘S’.

A perusal of the petition reveals that FIR was registered on the information of the Officer-in-charge of the Child Care Institution Mashobra at

Tutikandi, Shimla City, District Shimla. After the victims reached Dharampur, in the home of Victim Y, the Police recorded their statements under

Section 161 CrPC. After that, the Judicial Magistrate recorded their statements under Section 164 CrPC. A perusal of the narration of investigation as

mentioned in the status report filed by the State, the petitioner had committed coitus with victim ‘S’ and not with victim ‘Y.’

A perusal of the bail petition reveals that the petitioner did not file the copy of statements of the victims, recorded under 161 and 164 CrPC.

Without reading the statements of both the victims ‘S’ and ‘Y,’ it is not proper to assume that the petitioner had coitus with the victim

‘S’ and not with the victim ‘Y,’ against whom there are no allegations of false implications in the past.

A reference to the status report reveals that the Officer-in-charge of the Police station has already forwarded the police report under Section 173

(2) CrPC to the concerned Court. Had the accused not received the documents in compliance with S. 207 CrPC, this Court would have certainly

asked the respondent to produce the same. However, the petitioner does not claim the non-receipt of the challan. The accused receives copies of the

Police report and the copies of the statements of witnesses free of cost. Thus, if the accused wants the Court to refer any documents already

supplied, it is for the petitioner to place it along with the bail petition.

Given above, this Court can't reject or allow the present bail petition on its merits, without going through all the statements of both the victims.

Resultantly, this petition is dismissed with liberty reserved to the petitioner to file a fresh petition annexing all the relevant documents, including those

filed in the present petition.

The petition stands dismissed due to the reasons mentioned above, with liberty reserved to file fresh.

Copy Dasti.